Walter Olson on Reform Law Schools, Don’t Sue Them

I’ve expressed doubts previously as to whether the simple model of licensure as incumbent protection adequately explains why our legal system (like all others I know of) limits who can be a lawyer, and in particular who can litigate in others’ interest. But if there’s one sector of the legal system that’s genuinely ripe for a critique of cozy cartelization, it’s the legal academy, a topic I tackle at more length in my recent book Schools for Misrule.

Roughly a century ago, following the lead of the medical profession, law moved to a schools as-gatekeepers model in which the clerk/ apprentice route to practice, famous for having trained Abraham Lincoln and many another great lawyer, was made to yield to obligatory schooling, soon standardized at a term of three postgraduate years. Since then accreditors have repeatedly tightened standards to squeeze out a lower-cost model of legal schooling, once common in larger cities, which relied heavily on skilled local practitioners to teach in spare hours. Today, even lower-tier schools face accreditation pressures to go day-only rather than offer night degrees, to drop freestanding status in favor of affiliating with universities, to replace wily practitioners with research-oriented, tenured academics, to maintain large bound library holdings even as law firms themselves go virtual, to refrain from experimentation with supervised third-year externships, and so forth. Everyone is pressed to be more Yale-like — and everyone’s tuition ends up becoming more Yale-like as well.

Can we learn from other advanced countries in which “reading law” and other apprenticeship-like methods form a bigger part of legal training, and classroom lectures a smaller part? Surely we can. Encouragingly, some in the American Bar Association have voiced agreement with the need to re-evaluate accreditation rules to get out of the way of innovation and cost-cutting. More of that, please.

The rapidly rising consensus in favor of law school reform is by no means limited to outsiders, nor is it limited to the proposition that law school is too expensive and too rigidly committed to a prescribed format. Judges from Harry Edwards to Samuel Alito have criticized much legal scholarship as too often academic in the bad sense of being irrelevant to practicing lawyers, jurists or policymakers. BigLaw firms complain that graduates hired even from high-prestige schools — or perhaps especially from them — are innocent of the very basics of practice. Policymakers remain wary of legal academia’s tendency to generate clever ideas for social change, like the movement for slavery reparations, that may stimulate student interest but fail to survive first contact with the realities of American law and politics.

I suppose some lawyers at this moment are toying with the idea of a massive antitrust suit that would demand billions in tuition refunds. But really: let’s not hand all this over to litigators to be thrashed out over a decade and conclude in a settlement decree which would inevitably introduce its own new rigidities and anachronisms. Let’s seize the moment and see how much we can accomplish now.